SECURITIES AND EXCHANGE COMMISSION
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File No. 0-19842
PolyMedica Corporation
Massachusetts | 04-3033368 | |
|
||
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) |
11 State Street, Woburn, Massachusetts | 01801 | |||
|
||||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code | (781)933-2020 |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act). Yes [X] No [ ]
As of October 31, 2003, there were 25,556,171 shares of the registrants Common Stock issued and outstanding and an additional 320 shares held in treasury.
POLYMEDICA CORPORATION
TABLE OF CONTENTS
Page | ||||||||
PART I - |
FINANCIAL INFORMATION | |||||||
Item 1 - |
Financial Statements (unaudited) | |||||||
Consolidated Balance Sheets as of September 30 and March 31, 2003 | 3 | |||||||
Consolidated Statements of Operations for the three and six months ended September 30, 2003 and 2002 | 5 | |||||||
Consolidated Statements of Cash Flows for the six months ended September 30, 2003 and 2002 | 6 | |||||||
Notes to Consolidated Financial Statements | 7 | |||||||
Item 2 - |
Managements Discussion and Analysis of Financial Condition and Results of Operations | 17 | ||||||
Item 3 - |
Quantitative and Qualitative Disclosures About Market Risk | 33 | ||||||
Item 4 - |
Controls and Procedures | 34 | ||||||
PART II - |
OTHER INFORMATION | |||||||
Item 1 - |
Legal Proceedings | 35 | ||||||
Item 4 - |
Submission of Matters to a Vote of Security Holders | 36 | ||||||
Item 6 - |
Exhibits and Reports on Form 8-K | 36 | ||||||
Signatures |
37 | |||||||
Exhibit Index |
38 |
2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
PolyMedica Corporation
Consolidated Balance Sheets
(Unaudited)
(In thousands, except share and per share amounts)
September 30, | March 31, | ||||||||||
2003 | 2003 | ||||||||||
ASSETS |
|||||||||||
Current assets: |
|||||||||||
Cash and cash equivalents |
$ | 35,577 | $ | 27,162 | |||||||
Investments |
7,381 | 1,442 | |||||||||
Accounts receivable (net of allowances of
$26,498 and $22,556 as of September
30 and March 31, 2003, respectively) |
49,451 | 61,168 | |||||||||
Inventories (Note 3) |
16,905 | 18,850 | |||||||||
Deferred income taxes |
13,960 | 13,960 | |||||||||
Prepaid expenses and other current assets |
5,983 | 3,438 | |||||||||
Total current assets |
129,257 | 126,020 | |||||||||
Property, plant and equipment, net |
59,954 | 53,304 | |||||||||
Goodwill (Note 4) |
5,946 | 5,946 | |||||||||
Intangible assets, net |
207 | 108 | |||||||||
Direct-response advertising, net (Note 5) |
71,772 | 64,061 | |||||||||
Other assets |
1,990 | 1,530 | |||||||||
Total assets |
$ | 269,126 | $ | 250,969 | |||||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
3
PolyMedica Corporation
Consolidated Balance Sheets
(Unaudited)
(In thousands, except share and per share amounts)
September 30, | March 31, | |||||||||
2003 | 2003 | |||||||||
LIABILITIES AND SHAREHOLDERS EQUITY |
||||||||||
Current liabilities: |
||||||||||
Accounts payable |
$ | 3,449 | $ | 12,576 | ||||||
Accrued expenses (Note 7) |
19,021 | 17,003 | ||||||||
Current portion, capital lease obligations and note payable |
872 | 2,310 | ||||||||
Total current liabilities |
23,342 | 31,889 | ||||||||
Long-term capital lease and other obligations |
2,284 | 1,877 | ||||||||
Deferred income taxes |
20,528 | 20,528 | ||||||||
Total liabilities |
46,154 | 54,294 | ||||||||
Commitments and contingencies (Note 8) |
||||||||||
Shareholders equity: |
||||||||||
Preferred stock, $0.01 par value; 2,000,000 shares
authorized; none issued or outstanding |
| | ||||||||
Common stock, $0.01 par value; 50,000,000 shares
authorized; 25,359,056 and 24,920,488 issued as of September 30 and March 31, 2003, respectively |
254 | 249 | ||||||||
Treasury stock, at cost (1,340 and 349,310 shares as of
September 30 and March 31, 2003, respectively) |
(27 | ) | (7,149 | ) | ||||||
Deferred compensation |
(52 | ) | (54 | ) | ||||||
Additional paid-in capital |
107,483 | 105,341 | ||||||||
Retained earnings |
115,314 | 98,288 | ||||||||
Total shareholders equity |
222,972 | 196,675 | ||||||||
Total liabilities and shareholders equity |
$ | 269,126 | $ | 250,969 | ||||||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
4
PolyMedica Corporation
Consolidated Statements of Operations
(Unaudited)
(In thousands, except per share amounts)
Three Months Ended | Six Months Ended | |||||||||||||||||
Sept. 30, | Sept. 30, | Sept. 30, | Sept. 30, | |||||||||||||||
2003 | 2002 | 2003 | 2002 | |||||||||||||||
Net revenues |
$ | 105,222 | $ | 88,012 | $ | 204,159 | $ | 169,613 | ||||||||||
Cost of sales |
38,260 | 31,208 | 74,029 | 60,065 | ||||||||||||||
Gross margin |
66,962 | 56,804 | 130,130 | 109,548 | ||||||||||||||
Selling, general and administrative expenses |
47,583 | 40,977 | 93,071 | 79,005 | ||||||||||||||
Income from operations |
19,379 | 15,827 | 37,059 | 30,543 | ||||||||||||||
Other income and expense: |
||||||||||||||||||
Investment income/(loss) |
104 | (12 | ) | 327 | 32 | |||||||||||||
Interest expense |
(20 | ) | (34 | ) | (37 | ) | (70 | ) | ||||||||||
Other expense |
(10 | ) | | (53 | ) | (12 | ) | |||||||||||
74 | (46 | ) | 237 | (50 | ) | |||||||||||||
Income before income taxes |
19,453 | 15,781 | 37,296 | 30,493 | ||||||||||||||
Income tax provision |
7,353 | 5,965 | 14,098 | 11,526 | ||||||||||||||
Income before cumulative effect of
change in accounting principle |
12,100 | 9,816 | 23,198 | 18,967 | ||||||||||||||
Cumulative effect of change in accounting
principle, net of taxes of $9,187 (Note 4) |
| | | (14,615 | ) | |||||||||||||
Net income |
$ | 12,100 | $ | 9,816 | $ | 23,198 | $ | 4,352 | ||||||||||
Income before cumulative effect of change in
accounting principle per weighted average
share: |
||||||||||||||||||
Basic |
$ | 0.49 | $ | 0.40 | $ | 0.94 | $ | 0.78 | ||||||||||
Diluted |
$ | 0.47 | $ | 0.39 | $ | 0.91 | $ | 0.76 | ||||||||||
Cumulative effect of change in accounting
principle per weighted average share: |
||||||||||||||||||
Basic |
$ | | $ | | $ | | $ | (0.60 | ) | |||||||||
Diluted |
$ | | $ | | $ | | $ | (0.59 | ) | |||||||||
Net income per weighted average share: |
||||||||||||||||||
Basic |
$ | 0.49 | $ | 0.40 | $ | 0.94 | $ | 0.18 | ||||||||||
Diluted |
$ | 0.47 | $ | 0.39 | $ | 0.91 | $ | 0.17 | ||||||||||
Cash dividend per share |
$ | 0.125 | $ | | $ | 0.25 | $ | | ||||||||||
Weighted average shares, basic |
24,920 | 24,342 | 24,770 | 24,338 | ||||||||||||||
Weighted average shares, diluted |
25,810 | 24,879 | 25,577 | 25,018 |
The accompanying notes are an integral part of these unaudited consolidated financial statements.
5
PolyMedica Corporation
Consolidated Statements of Cash Flows
(Unaudited)
(In thousands)
Six Months Ended | ||||||||||||
September 30, | ||||||||||||
2003 | 2002 | |||||||||||
Cash flows from operating activities: |
||||||||||||
Net income |
$ | 23,198 | $ | 4,352 | ||||||||
Adjustments to reconcile net income to net cash flows: |
||||||||||||
Impairment of goodwill, net of taxes |
| 14,615 | ||||||||||
Depreciation and amortization |
3,909 | 2,791 | ||||||||||
Amortization of direct-response advertising |
21,254 | 17,358 | ||||||||||
Direct-response advertising expenditures |
(28,965 | ) | (23,497 | ) | ||||||||
Provision for bad debts |
11,330 | 12,508 | ||||||||||
Provision for sales allowances/returns |
9,909 | 8,202 | ||||||||||
Stock-based compensation |
195 | 6 | ||||||||||
Loss on sale of equipment |
45 | | ||||||||||
Changes in assets and liabilities: |
||||||||||||
Accounts receivable |
(9,522 | ) | (22,689 | ) | ||||||||
Inventories |
1,945 | 1,019 | ||||||||||
Prepaid expenses and other assets |
(2,534 | ) | (1,716 | ) | ||||||||
Accounts payable |
(9,127 | ) | (811 | ) | ||||||||
Accrued expenses and other liabilities |
2,326 | 468 | ||||||||||
Net cash flows from operating activities |
23,963 | 12,606 | ||||||||||
Cash flows from investing activities: |
||||||||||||
Purchase of investments |
(5,939 | ) | | |||||||||
Purchase of customer list |
(212 | ) | | |||||||||
Purchase of property, plant and equipment |
(10,407 | ) | (12,077 | ) | ||||||||
Net cash flows used by investing activities |
(16,558 | ) | (12,077 | ) | ||||||||
Cash flows from financing activities: |
||||||||||||
Proceeds from issuance of common stock |
9,073 | 724 | ||||||||||
Repurchase of common stock |
| (659 | ) | |||||||||
Contributions to deferred compensation plans |
(308 | ) | (1,274 | ) | ||||||||
Payment of dividends declared on common stock |
(6,171 | ) | | |||||||||
Payment of obligations under capital leases and note payable |
(1,584 | ) | (370 | ) | ||||||||
Net cash flows from/(used by) financing activities |
1,010 | (1,579 | ) | |||||||||
Net change in cash and cash equivalents |
8,415 | (1,050 | ) | |||||||||
Cash and cash equivalents at beginning of period |
27,162 | 27,884 | ||||||||||
Cash and cash equivalents at end of period |
$ | 35,577 | $ | 26,834 | ||||||||
Supplemental disclosure of cash flow information: |
||||||||||||
Assets purchased under capital lease |
$ | 98 | $ | 281 | ||||||||
Disposal of equipment |
355 | 77 |
The accompanying notes are an integral part of these unaudited consolidated financial statements.
6
PolyMedica Corporation
Notes to Consolidated Financial Statements
(Unaudited)
1. | Basis of Presentation |
Company
PolyMedica Corporation and its subsidiaries (PolyMedica) is a leading provider of direct-to-consumer medical products, conducting business through its Liberty Diabetes, Liberty Respiratory, and Pharmaceuticals segments.
Accounting
The unaudited consolidated financial statements included herein have been prepared by PolyMedica pursuant to the rules and regulations of the Securities and Exchange Commission (SEC) and include, in the opinion of management, all adjustments, consisting of normal, recurring adjustments, necessary for a fair presentation of interim period results. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such rules and regulations.
The results for the interim periods presented are not necessarily indicative of results to be expected for the full fiscal year. It is suggested that these interim consolidated financial statements be read in conjunction with the audited consolidated financial statements included in our Annual Report on Form 10-K for the fiscal year ended March 31, 2003 and our unaudited consolidated financial statements included in our Quarterly Report on Form 10-Q for the period ended June 30, 2003.
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make certain estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reported period. Estimates and judgments are used for, including, but not limited to, determination of appropriate Medicare reimbursement rates, the allowances for doubtful accounts and sales allowances, valuation of inventory, goodwill, direct-response advertising, accrued expenses, accruals for Medicare adjustments, uncertainties that management determines are estimable and probable, and depreciation and amortization. Actual results could differ from those estimates.
On September 5, 2003, PolyMedicas Board of Directors (the Board) declared a two-for-one split of PolyMedicas common stock, payable on September 29, 2003. The two-for-one stock split was effected in the form of a 100% stock dividend paid to shareholders of record as of the close of business on September 19, 2003. This resulted in the new issuance of 11.82 million shares of common stock plus the issuance of 854,000 shares held in treasury together with a decrease in additional paid-in capital and an increase in treasury stock equivalent to the cost value of the treasury shares issued and a decrease in additional paid-in capital equivalent to the par value of the newly issued shares. All share and per share amounts have been restated to reflect the retroactive effect of the stock split, except for PolyMedicas capitalization.
Certain amounts in the prior period consolidated financial statements have been reclassified to conform with the current period Form 10-Q presentation.
2. | Revenue Recognition and Accounts Receivable |
We recognize revenue related to product sales to customers who have placed orders, upon shipment, provided that risk of loss has passed to the customer and we have received and verified the required written forms, if applicable, to bill Medicare, other third-party payers, and customers. We record revenue at the amounts expected to be collected from Medicare, other third-party payers, and directly from customers. As a result, our contractual allowances are immaterial. Revenue recognition is delayed for product shipments for which we have not yet received the required written forms, until the period in which those documents are collected and verified.
Revenue for Medicare reimbursement is calculated based on government-determined reimbursement prices for
-7-
Medicare-covered items. The reimbursements that Medicare pays us are subject to review by appropriate government regulators. Medicare reimburses at 80% of the government-determined reimbursement prices for reimbursable supplies and we bill the remaining balance to either third-party payers or directly to customers.
Approximately $70.86 million and $60.56 million of net revenues for the three months ended September 30, 2003 and 2002, respectively, were reimbursable by Medicare for products provided to Medicare beneficiaries. Approximately $138.80 million and $117.46 million of net revenues for the six months ended September 30, 2003 and 2002, respectively, were reimbursable by Medicare for products provided to Medicare beneficiaries.
The valuation of accounts receivable is based upon the credit-worthiness of customers and third-party payers as well as our historical collection experience. Allowances for doubtful accounts are recorded as a selling, general and administrative expense for estimated amounts expected to be uncollectible from third-party payers and customers. We base our estimates on our historical collection and write-off experience, current trends, credit policy, and on our analysis of accounts receivable by aging category.
Sales allowances are recorded for estimated product returns as well as estimated claim denials, as a reduction of revenue. We analyze sales allowances using historical data adjusted for significant changes in volume, customer demographics, and business conditions. These allowances are adjusted to reflect actual returns and claim denials. During the three months ended September 30, 2003 and 2002, we provided for sales returns and allowances at a rate of approximately 4.3% and 4.9% of gross revenues, respectively. During each of the six months ended September 30, 2003 and 2002, we provided for sales returns and allowances at a rate of approximately 4.6% of gross revenues.
Our accounts receivable are generally due from Medicare, private insurance companies, Medicaid and our customers. The collection process is time consuming and complex and typically involves the submission of claims to multiple payers whose payment of claims may be contingent upon the payment of another payer. As a result, our collection efforts may be active up to 1 1/2 years from the initial billing date. In accordance with applicable regulatory requirements, we make reasonable and appropriate efforts to collect our accounts receivable, including deductible and copayment amounts, in a consistent manner for all payer classes. During the three months ended September 30, 2003 and 2002, we provided for allowances for doubtful accounts at a rate of approximately 5.4% and 7.5% of net revenues, respectively. During the six months ended September 30, 2003 and 2002, we provided for allowances for doubtful accounts at a rate of approximately 5.6% and 7.4% of net revenues, respectively.
Accounts receivable allowances consist of an allowance for doubtful accounts, an allowance for product returns, and other sales allowances. As of September 30 and March 31, 2003, accounts receivable allowances were $26.50 million and $22.56 million, respectively, or 34.9% and 26.9% of gross accounts receivable, respectively.
3. | Inventories |
Inventories consist of the following:
September 30, | March 31, | |||||||
(in thousands) | 2003 | 2003 | ||||||
Raw materials |
$ | 1,483 | $ | 1,453 | ||||
Work in process |
432 | 480 | ||||||
Finished goods |
14,990 | 16,917 | ||||||
$ | 16,905 | $ | 18,850 | |||||
Due to the medical nature of the products we provide, customers sometimes request supplies before we have received the required written documents, if applicable, to bill Medicare, other third-party payers and customers. Because we do not recognize revenue until we have received and verified such documents, included in inventories as of September 30 and March 31, 2003, is $2.08 million and $2.57 million, respectively, of inventory shipped to customers for which we have received an order but have not yet received the required written documents, if applicable, to bill Medicare, other third-party payers, and customers and recognize revenue.
4. | Goodwill and Other Intangible Assets |
In July 2001, the Financial Accounting Standards Board (the FASB) issued Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and Other Intangible Assets. SFAS No. 142 requires that ratable amortization of goodwill and certain intangible assets be replaced with periodic impairment tests of the goodwill and that other intangible assets be amortized over their useful lives unless these lives are determined to be indefinite. SFAS No. 142 is effective for fiscal years beginning after December 15, 2001, and thus was adopted by PolyMedica on April 1, 2002.
The first step of the transitional impairment test was completed in the quarter ended September 30, 2002, which resulted in the determination that the carrying value of the net assets related to our PolyMedica Pharmaceuticals (U.S.A.), Inc. and PolyMedica Healthcare, Inc. reporting units, included in our Pharmaceuticals segment, exceeded their fair value. As a result, we performed the second step of the transitional impairment test in the quarter ended December 31, 2002, to measure the amount of the impairment loss, in which we compared the implied fair value of the goodwill in these two reporting units with the carrying amount of the goodwill. We determined that the carrying value of the goodwill for these reporting units exceeded the implied fair value of that goodwill by $23.80 million. We recorded a $23.80 million ($14.62 million net of taxes) impairment loss related to these reporting units as a cumulative effect of a change in accounting principle retroactive to April 1, 2002.
-8-
Goodwill included in the PolyMedica Pharmaceuticals (U.S.A.), Inc. and PolyMedica Healthcare, Inc. reporting units is a result of PolyMedicas acquisition of an Alcon urological product line, including over-the-counter and prescription urology products, in December 1992. Net of the impairment loss, the remaining goodwill related to these reporting units as of September 30 and March 31, 2003 was $1.00 million. Including the amount of goodwill recorded in our Liberty Diabetes segment, which was not considered to be impaired under our transitional impairment test, PolyMedicas total goodwill as of September 30 and March 31, 2003 was $5.95 million.
We are required to perform impairment tests under SFAS No. 142 annually and whenever events or changes in circumstance suggest that the carrying value of an asset may not be recoverable and record any impairment as a cost of continuing operations.
We have three reporting units with goodwill: Liberty Medical Supply, Inc. (Liberty Medical), included in the Liberty Diabetes reporting segment, and PolyMedica Pharmaceuticals (U.S.A.), Inc. and PolyMedica Healthcare, Inc., both included in the Pharmaceuticals reporting segment. The carrying amounts of goodwill and intangible assets, excluding direct-response advertising, as of September 30 and March 31, 2003, by reportable segment, were as follows:
September 30, | March 31, | |||||||
(in thousands) | 2003 | 2003 | ||||||
Liberty Diabetes: |
||||||||
Goodwill |
$ | 4,951 | $ | 4,951 | ||||
Customer list |
$ | 2,028 | $ | 1,816 | ||||
Accumulated amortization |
(1,821 | ) | (1,708 | ) | ||||
$ | 207 | $ | 108 | |||||
Pharmaceuticals: |
||||||||
Goodwill |
$ | 995 | $ | 995 | ||||
Total consolidated goodwill |
$ | 5,946 | $ | 5,946 | ||||
Total amortizable intangible assets |
2,028 | 1,816 | ||||||
Total accumulated amortization |
(1,821 | ) | (1,708 | ) | ||||
$ | 207 | $ | 108 | |||||
In the quarter ended September 30, 2003, we purchased a customer list, consisting primarily of diabetes patients, for approximately $212,000, from a small healthcare company. We purchased this list in an effort to expand our customer base through means other than direct-response advertising. We will amortize the cost of the customer list to selling, general and administrative expenses on an accelerated basis during the first two years of a four-year period, such that 55% of the cost is expensed after two years from the date of acquisition and the remaining 45% is expensed on a straight-line basis over the next two years, identical to our accounting treatment of direct-response advertising for our Liberty Diabetes segment.
Amortization expense for intangible assets was approximately $48,000 and $184,000 for the three months ended September 30, 2003 and 2002, respectively, and approximately $113,000 and $368,000 for the six months ended September 30, 2003 and 2002, respectively. As of September 30, 2003, amortization expense on existing intangibles for the remainder of fiscal 2004 and the next four fiscal years is as follows (table in thousands):
2004 |
$ | 34 | ||
2005 |
57 | |||
2006 |
48 | |||
2007 |
48 | |||
2008 |
20 | |||
Total |
$ | 207 | ||
5. | Direct-Response Advertising |
In accordance with Statement of Position 93-7 (SOP 93-7), direct-response advertising and associated costs for our diabetes supplies and related products, included in the Liberty Diabetes segment, for the periods presented are capitalized and amortized to selling, general and administrative expenses on an accelerated basis during the first two years of a four-year period. The amortization rate is such that 55% of such costs are expensed after two years from the
-9-
date they are incurred, and the remaining 45% is expensed on a straight-line basis over the next two years. Management assesses the realizability of the amounts of direct-response advertising costs reported as assets at each balance sheet date by comparing the carrying amounts of such assets to the probable remaining future net cash flows expected to result directly from such advertising. Advertising that does not meet the capitalization requirements of SOP 93-7 is expensed in the current period.
Direct-response advertising and related costs for our respiratory supplies, included in the Liberty Respiratory segment, for all periods presented are capitalized and amortized to selling, general and administrative expenses on a straight-line basis over a two-year period.
Any change in existing accounting rules or a business change that impacts expected net cash flows or that shortens the period over which such net cash flows are estimated to be realized, currently four years for our diabetes products and two years for our respiratory supplies, could result in accelerated charges against our earnings. In addition, new or different marketing initiatives that may not qualify for direct-response advertising could result in accelerated charges against our earnings.
On September 4, 2003, we announced that we had concluded discussions with the SEC regarding our capitalization of advertising costs under the direct-response advertising exception in SOP 93-7, and that we would continue to capitalize these costs related to the acquisition of new customers, rather than expensing these costs as incurred. Accordingly, we will not restate our historical financial statements, the possibility of which was discussed in previous SEC filings.
In accordance with SOP 93-7, we recorded the following activity related to our direct-response advertising asset for the periods presented:
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
(in thousands) | 2003 | 2002 | 2003 | 2002 | ||||||||||||
Capitalized
direct-response
advertising |
$ | 15,103 | $ | 11,984 | $ | 28,965 | $ | 23,497 | ||||||||
Direct-response
advertising
amortization |
10,890 | 8,851 | 21,254 | 17,358 | ||||||||||||
Increase in
direct-response
advertising asset,
net |
$ | 4,213 | $ | 3,133 | $ | 7,711 | $ | 6,139 | ||||||||
Beginning
direct-response
advertising asset,
net |
67,559 | 55,118 | 64,061 | 52,112 | ||||||||||||
Ending
direct-response
advertising asset,
net |
$ | 71,772 | $ | 58,251 | $ | 71,772 | $ | 58,251 | ||||||||
6. | New Accounting Pronouncements |
In May 2003, the FASB issued SFAS No. 150, Accounting For Certain Financial Instruments with Characteristics of Both Liabilities and Equity, which establishes standards for how an issuer of financial instruments classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances) if, at inception, the monetary value of the obligation is based solely or predominantly on a fixed monetary amount known at inception, variations in something other than the fair value of the issuers equity shares or variations inversely related to changes in the fair value of the issuers equity shares. SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. We adopted SFAS No. 150, as required, on July 1, 2003. The adoption of this statement has not had a material impact on our financial position or results of operations.
In December 2002, the FASB issued FASB Interpretation No. 46, Consolidation of Variable Interest Entities (FIN 46). In general, a variable interest entity is a corporation, partnership, trust or other legal structure used for business purposes that either (a) does not have equity investors with characteristics of a controlling financial interest or (b) has equity investors that do not provide sufficient financial resources for the entity to support its activities. A variable interest entity often holds financial assets, including loans or receivables, real estate or other property. FIN 46 requires a
-10-
variable interest entity to be consolidated by a company if that company is subject to a majority of the risk of loss from the variable interest entitys activities or entitled to receive a majority of the entitys residual returns or both. Additionally, companies with significant investments in variable interest entities, even if not required to consolidate the variable interest entity, have enhanced disclosure requirements. FIN 46 is effective immediately for certain disclosure requirements and variable interest entities created after January 31, 2003 and is effective for periods beginning after December 15, 2003 for variable interest entities created before February 1, 2003. The adoption of this statement is not expected to have a material impact on our financial position or results of operations.
7. | Accrued Expenses |
Accrued expenses consist of the following:
September 30, | March 31, | |||||||
(in thousands) | 2003 | 2003 | ||||||
Salaries and benefits |
$ | 8,344 | $ | 8,641 | ||||
Income tax payable |
1,868 | (1,181 | ) | |||||
Amounts reserved for overpayments by Medicare
and others |
4,941 | 4,941 | ||||||
Other |
3,868 | 4,602 | ||||||
$ | 19,021 | $ | 17,003 | |||||
Amounts reserved for overpayments by Medicare and others represent amounts due to Medicare and related amounts due to insurers and Medicare beneficiaries that arise in the normal course of business as well as those related to a change in interpretation of the reimbursement formula for albuterol and ipratropium combinations used in our Liberty Respiratory segment. When we established the reserve for albuterol and ipratropium combinations in the fiscal year ended March 31, 2002, $5.03 million was charged to selling, general and administrative expenses for billing adjustments prior to July 1, 2001 and $823,000 represented billing adjustments related to the quarter ended September 30, 2001. In the quarter ended September 30, 2002, we recorded a benefit of $2.22 million related to a reduction in this reserve following a favorable determination by one of the four Medicare carriers that our original method of billing for albuterol and ipratropium combinations was proper.
The governments Medicare regulations are complex and sometimes subjective and therefore may require managements interpretation. Accruals for overpayments by Medicare and others also occur in the normal course of business when, based on our assessment of the facts and circumstances, we believe that the amounts due are probable and estimable.
8. | Commitments and Contingencies |
Our compliance with Medicare regulations may be reviewed by federal or state agencies, including the Department of Health and Human Services Office of Inspector General (OIG), the Department of Justice (DOJ), and the United States Food and Drug Administration (FDA). The U.S. Attorneys Office for the Southern District of Florida, with the assistance of the Federal Bureau of Investigation (FBI) and OIG, is investigating allegations of healthcare fraud, improper revenue recognition and obstruction of justice by Liberty Medical and Liberty Home Pharmacy Corporation (Liberty Home Pharmacy). Both civil and criminal investigations are being conducted. We are cooperating with the investigations. Since July 1, 2001 we have spent approximately $10.58 million on outside legal and accounting fees primarily preparing for and responding to the investigations and the lawsuits described below. This work has been conducted under the overall direction of the Oversight Committee, a special Board committee comprised of three non-employee directors, which was established to oversee our response to the investigations and the related litigation.
We are party to the following additional legal proceedings:
Class Action Lawsuit. We are a defendant in a purported class action lawsuit in the United States District Court for the District of Massachusetts against PolyMedica, Steven J. Lee, PolyMedicas former Chief Executive Officer
-11-
and Chairman of the Board, Eric G. Walters, former Executive Vice President and Clerk of PolyMedica, and Warren K. Trowbridge, President of Liberty Healthcare Group, Inc. and a Senior Vice President of PolyMedica, filed on behalf of purchasers of our common stock. The lawsuit seeks an unspecified amount of damages, attorneys fees and costs and claims violations of Sections 10(b), 10b-5, and 20(a) of the Securities Exchange Act of 1934 (the Exchange Act), alleging various statements were misleading with respect to our revenue and earnings based on an alleged scheme to produce fictitious sales. The complaint was originally filed November 27, 2000, and consolidated with a virtually identical later-filed complaint on July 30, 2001, under the caption In re: PolyMedica Corp. Securities Litigation, Civ. Action No. 00-12426-REK. A consolidated amended complaint was filed on October 9, 2001, asserting claims on behalf of a putative class of purchasers of PolyMedica stock between October 26, 1998 and August 21, 2001. The Court denied the defendants motion to dismiss the consolidated complaint on May 10, 2002. On July 30, 2001, the Court granted the plaintiffs motion to consolidate the complaints under the caption In re: PolyMedica Corp. Securities Litigation, Civ. Action No. 00-12426-REK. The case is currently in discovery. We believe that we have meritorious defenses to the claims made in the consolidated amended complaint and intend to contest the claims vigorously. We are unable to express an opinion as to the likely outcome of this litigation.
Derivative Complaint. On August 9, 2001, a plaintiff filed a purported derivative action in Massachusetts Superior Court for Middlesex County against our Board. At least three virtually identical derivative actions were subsequently filed in Massachusetts Superior Court. On October 11, 2001, the Court granted plaintiffs motion to consolidate the derivative actions under the caption In re: PolyMedica Corp. Shareholder Derivative Litigation, Civ. Action No. 01-3446 and the plaintiffs subsequently filed a consolidated derivative complaint, alleging that the defendants breached their fiduciary duties by, among other things, failing to exercise reasonable care in the oversight of corporate affairs and management with respect to the operations of Liberty Medical and by acquiescing in alleged misconduct by Liberty Medical. The consolidated complaint, filed on December 17, 2001, names as defendants PolyMedica, Steven J. Lee, Arthur A. Siciliano, President of PolyMedica, Eric G. Walters, and five members of PolyMedicas Board of Directors: Herbert A. Denton, Thomas S. Soltys, Frank Logerfo, Marcia J. Hooper, and Daniel S. Bernstein. Defendants motion to dismiss the consolidated complaint was denied on July 16, 2002. On September 16, 2002, the Court granted defendants motions to report the case to the Appeals Court and stay the proceedings, but denied defendants motion to reconsider its denial of the motion to dismiss. On January 23, 2003, the Appeals Court docketed the case under the caption Roberta Casden v. Daniel S. Bernstein and others, No. 2003-P-0107. The case is currently stayed by the Appeals Court until November 4, 2003.
On July 1, 2003, the Appeals Court granted a motion to remand the proceedings to Middlesex Superior Court for purposes of approving a potential settlement. A settlement agreement has been filed with the Superior Court, and recites certain corporate governance changes we have made and enhancements to our compliance functions. Pursuant to this agreement, PolyMedica denied all liability and the factual allegations in the complaint and has agreed to pay only plaintiffs attorneys fees and expenses in an amount to be determined by the Court and notice costs. PolyMedica will seek and expects to receive reimbursement of such attorneys fees from its insurer. The settlement is subject to approval by the Middlesex Superior Court. We can provide no assurance that the settlement will be approved by the Court. The defendants believe they have meritorious defenses to the claims made in the consolidated complaint and if the settlement is not approved, intend to contest the claims vigorously.
Litigation Relative to Direct Response Advertising. In July and August 2003, new lawsuits alleging violations of certain sections and rules of the Exchange Act were filed concerning PolyMedicas accounting treatment of advertising costs. In addition to PolyMedica, Steven J. Lee, Samuel L. Shanaman, Interim Chief Executive Officer and Lead Director, Arthur A. Siciliano, John K.P. Stone, III, General Counsel and Senior Vice President, Stephen C. Farrell, Senior Vice President and Chief Financial Officer, Eric Walters and Warren K. Trowbridge were named as defendants in these lawsuits. The first complaint, Sved v. PolyMedica Corp., Civ. Act. No. 03-11270-RCL was filed July 3, 2003. Similar complaints, Gourdji v. PolyMedica Corp., Civ. Act. No. 03-CV-11393, and Thompson v. PolyMedica Corp., Civ. Act. No. 03-CV-11604 were filed in U.S. District Court for the District of Massachusetts on July 24, 2003 and August 27, 2003, respectively.
Following our announcement on September 4, 2003 that we had concluded our discussions with the SEC concerning our capitalization of advertising costs under the direct-response advertising exception in SOP 93-7 and would not restate our historical financial statements, the parties filed, on September 23, 2003, a stipulated motion to dismiss, with prejudice, the Thompson complaint, and the Court granted the motion on September 25, 2003. On October 16, 2003, the parties filed a further motion and stipulation for order of dismissal without prejudice with respect to the remaining shareholder litigation pending in the U.S. District Court for the District of Massachusetts concerning PolyMedicas accounting treatment of advertising costs. The court granted the motion on
-12-
October 23, 2003.
If any of these investigations or legal proceedings referred to above results in a determination that we have failed to comply with the statutes or regulations governing Medicare reimbursement or financial reporting or have otherwise committed healthcare fraud or securities law violations, we could be subject to delays or loss of reimbursement, substantial fines or penalties, and other sanctions (including exclusion from Medicare and other federal healthcare program participation). We cannot accurately predict the outcome of these proceedings at this time, and have therefore not recorded any charges relating to these proceedings. An unfavorable outcome could have a material effect on our financial position and results of operations.
In addition to those described above, we have certain contingent liabilities, including but not limited to, litigation that arises in the ordinary course of business. We accrue contingent liabilities when it is probable that future expenditures will be made and such expenditures can be reasonably estimated.
9. | Segment Information |
Our reportable segments are strategic business units or divisions that offer different products. These units have separate financial information that is evaluated by senior management. The segments are as follows:
Liberty Diabetes Through our Liberty Diabetes segment, we provide diabetes testing supplies and related products to customers suffering from diabetes and related chronic diseases. We offer a wide array of diabetes supplies from a broad range of manufacturers.
Liberty Respiratory Through our Liberty Respiratory segment, we provide prescription respiratory medications and supplies to customers suffering from chronic obstructive pulmonary disease (COPD).
Pharmaceuticals Through our Pharmaceuticals segment, we provide prescription oral medications not covered by Medicare directly to existing Liberty Medical customers and sell prescription urology and suppository products, over-the-counter female urinary discomfort products, and home medical diagnostic kits.
Selling, general and administrative expenses attributable to PolyMedicas corporate headquarters are allocated to the operating segments according to the segments relative percentage of total revenue. Selling, general and administrative expenses incurred by Liberty Diabetes that were incurred on behalf of all Florida businesses for shared services, are allocated to the operating segments primarily in accordance with the segments relative percentage of total employees. However, segment assets belonging to PolyMedicas corporate headquarters, which included $33.88 million and $17.40 million of cash, cash equivalents and investments as of September 30 and March 31, 2003, respectively, are not allocated as they are considered separately for management evaluation purposes. As a result of these allocations and the start-up nature of some of the businesses included in our Liberty Diabetes and Pharmaceuticals segments, the segment information may not be indicative of the financial position or results of operations that would have been achieved had these segments operated as unaffiliated entities. The depreciation and amortization amounts below include amortization of direct-response advertising. We do not organize our units geographically, as our products are sold throughout the United States only. There are no intersegment sales for the periods presented. Information concerning the operations in these reportable segments, restated to reflect the way we currently segment our business, is as follows:
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
(in thousands) | 2003 | 2002 | 2003 | 2002 | ||||||||||||
Net Revenues: |
||||||||||||||||
Liberty Diabetes |
$ | 70,764 | $ | 60,962 | $ | 138,293 | $ | 119,476 | ||||||||
Liberty Respiratory |
20,068 | 18,609 | 39,935 | 35,189 | ||||||||||||
Pharmaceuticals |
14,390 | 8,441 | 25,931 | 14,948 | ||||||||||||
Total |
$ | 105,222 | $ | 88,012 | $ | 204,159 | $ | 169,613 | ||||||||
Depreciation and
Amortization
Expense: |
||||||||||||||||
Liberty Diabetes |
$ | 7,658 | $ | 5,910 | $ | 14,887 | $ | 11,426 | ||||||||
Liberty Respiratory |
5,088 | 4,098 | 9,938 | 8,163 | ||||||||||||
Pharmaceuticals |
164 | 302 | 338 | 560 | ||||||||||||
Total |
$ | 12,910 | $ | 10,310 | $ | 25,163 | $ | 20,149 | ||||||||
-13-
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
(in thousands) | 2003 | 2002 | 2003 | 2002 | ||||||||||||
Income before Income Taxes: |
||||||||||||||||
Liberty Diabetes |
$ | 11,717 | $ | 8,324 | $ | 23,052 | $ | 18,547 | ||||||||
Liberty Respiratory |
5,495 | 6,881 | 10,758 | 10,778 | ||||||||||||
Pharmaceuticals |
2,241 | 576 | 3,486 | 1,168 | ||||||||||||
Total |
$ | 19,453 | $ | 15,781 | $ | 37,296 | $ | 30,493 | ||||||||
September 30, | March 31, | |||||||||||||||
2003 | 2003 | |||||||||||||||
Segment assets: |
||||||||||||||||
Liberty Diabetes |
$ | 159,690 | $ | 152,457 | ||||||||||||
Liberty Respiratory |
41,223 | 46,928 | ||||||||||||||
Pharmaceuticals |
16,836 | 17,961 | ||||||||||||||
Corporate Headquarters |
51,377 | 33,623 | ||||||||||||||
Total |
$ | 269,126 | $ | 250,969 | ||||||||||||
Selling, general and administrative expenses attributable to PolyMedicas corporate headquarters decreased $2.21 million and $2.00 million in the three and six months ended September 30, 2003, as compared with the three and six months ended September 30, 2002, respectively. Income before Income Taxes for our Liberty Respiratory segment for both the three and six months ended September 30, 2002, included a $2.22 million benefit for the reduction of accrued amounts due to Medicare and others, as discussed in Note 7.
10. | Accounting for Stock-Based Compensation |
In December 2002, the FASB issued SFAS No. 148, Accounting for Stock-Based Compensation Transition and Disclosure an amendment of FASB Statement No. 123. SFAS No. 148 amends SFAS No. 123, Accounting for Stock-Based Compensation, to provide alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based employee compensation. In addition, SFAS No. 148 amends the disclosure requirements of SFAS No. 123 to require prominent disclosures in both annual and interim financial statements about the method of accounting for stock-based employee compensation and the effect of the method used on reported results. As provided for in SFAS No. 123, we have elected to apply Accounting Principles Board (APB) No. 25 Accounting for Stock Issued to Employees and related interpretations in accounting for our stock-based compensation plans. SFAS No. 123 defines a fair value method of accounting for stock options and other equity instruments. Under the fair value method, compensation cost is measured at the grant date based on the fair value of the award and is recognized over the service period, which is usually the vesting period. APB No. 25 does not require employee options to be expensed when granted with an exercise price equal to fair market value, provided other criteria are met.
The following is a reconciliation of net income per weighted average share had we adopted SFAS No. 123:
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
(in thousands, except per share data) | 2003 | 2002 | 2003 | 2002 | ||||||||||||
Net income |
$ | 12,100 | $ | 9,816 | $ | 23,198 | $ | 4,352 | ||||||||
Add back: Stock compensation costs,
net of tax, on options granted below
fair market value |
58 | 35 | 122 | 35 | ||||||||||||
Less: Stock compensation costs, net
of tax, had all employee options
been recorded at fair value |
(1,106 | ) | (1,082 | ) | (2,499 | ) | (2,741 | ) | ||||||||
Adjusted net income |
$ | 11,052 | $ | 8,769 | $ | 20,821 | $ | 1,646 | ||||||||
Weighted average shares, basic |
24,920 | 24,342 | 24,770 | 24,338 | ||||||||||||
Weighted average shares, diluted |
25,810 | 24,879 | 25,577 | 25,018 |
-14-
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
(in thousands, except per share data) | 2003 | 2002 | 2003 | 2002 | ||||||||||||
Net income per weighted
average share, basic, as
reported |
$ | 0.49 | $ | 0.40 | $ | 0.94 | $ | 0.18 | ||||||||
Net income per weighted
average share, diluted,
as reported |
$ | 0.47 | $ | 0.39 | $ | 0.91 | $ | 0.17 | ||||||||
Adjusted net income per
weighted average share,
basic |
$ | 0.44 | $ | 0.36 | $ | 0.84 | $ | 0.07 | ||||||||
Adjusted net income per
weighted average share,
diluted |
$ | 0.43 | $ | 0.35 | $ | 0.81 | $ | 0.07 | ||||||||
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
2003 | 2002 | 2003 | 2002 | |||||||||||||
Weighted-average fair
value of options granted |
$ | 17.75 | $ | 13.52 | $ | 21.16 | $ | 14.01 |
The fair value of each option granted during fiscal 2004 and fiscal 2003 is estimated on the date of grant using the Black-Scholes option pricing model with the following weighted average assumptions:
Three months ended | Six months ended | |||||||||||||||
September 30, | September 30, | September 30, | September 30, | |||||||||||||
2003 | 2002 | 2003 | 2002 | |||||||||||||
Dividend yield |
1.89 | % | 2.91 | % | 2.07 | % | 2.91 | % | ||||||||
Expected volatility |
98.47 | % | 89.73 | % | 94.76 | % | 89.73 | % | ||||||||
Risk-free interest rate |
2.95 | % | 2.44 | % | 2.75 | % | 2.55 | % | ||||||||
Expected life |
5.0 | 4.0 | 5.0 | 4.0 |
11. | Income Before Cumulative Effect of Change in Accounting Principle per Share |
Calculations of income before cumulative effect of change in accounting principle, referring to the April 1, 2002 adoption of SFAS No. 142, Goodwill and Other Intangible Assets discussed in Note 4, per weighted average share are as follows:
Three months ended | Six months ended | |||||||||||||||
(In thousands, except per share data) | Sept. 30, 2003 | Sept. 30, 2002 | Sept. 30, 2003 | Sept. 30, 2002 | ||||||||||||
Income before cumulative effect of change in accounting principle |
$ | 12,100 | $ | 9,816 | $ | 23,198 | $ | 18,967 | ||||||||
BASIC: |
||||||||||||||||
Weighted average common stock outstanding, net of treasury
stock, end of period |
24,920 | 24,342 | 24,770 | 24,338 | ||||||||||||
Income before cumulative effect of change in accounting
principle per weighted average share, basic |
$ | 0.49 | $ | 0.40 | $ | 0.94 | $ | 0.78 | ||||||||
DILUTED: |
||||||||||||||||
Weighted average common stock outstanding, net of treasury
stock, end of period |
24,920 | 24,342 | 24,770 | 24,338 | ||||||||||||
Weighted average dilutive common stock equivalents |
890 | 537 | 807 | 680 | ||||||||||||
Weighted average common stock and dilutive common stock
equivalents outstanding, net of treasury stock |
25,810 | 24,879 | 25,577 | 25,018 | ||||||||||||
Income before cumulative effect of change in accounting
principle per weighted average share, diluted |
$ | 0.47 | $ | 0.39 | $ | 0.91 | $ | 0.76 | ||||||||
-15-
Potentially Dilutive Stock Options
Options to purchase 244,500 and 2,101,326 shares of common stock were outstanding as of September 30, 2003 and 2002, respectively, but were not included in the computation of diluted earnings per share because the options exercise prices were greater than the average market price of the common shares. During the six months ended September 30, 2003 and 2002, options to purchase 1,374,470 and 1,321,908 shares of common stock, respectively, were outstanding, but were not included in the computation of diluted earnings per share because the options exercise prices were greater than the average market price of the common shares.
12. | Comprehensive Income |
Our total comprehensive income is equal to our net income for the three and six months ended September 30, 2003 and 2002.
13. | Stockholders Equity Cash Dividends |
On August 15, 2003, we paid a $0.125 per share cash dividend on 24,785,074 common shares outstanding for a total payment of $3.10 million to our common shareholders of record as of the close of business on August 5, 2003. For the six months ended September 30, 2003, we paid a total of $6.17 million in cash dividends to our common shareholders of record. On October 6, 2003 our Board declared a cash dividend of $0.15 per share of PolyMedicas common stock to shareholders of record as of the close of business on November 5, 2003, payable on November 17, 2003.
-16-
Item 2. Managements Discussion and Analysis of Financial Condition and Results of Operations
The statements contained in this Quarterly Report on Form 10-Q that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. For this purpose, any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements, including, without limitation, statements regarding expected future cash dividends, future marketing activities and earnings, revenue, gross margin and operating margin trends and potential business strategies. Without limiting the foregoing, the words believes, anticipates, plans, expects, and similar expressions are intended to identify forward-looking statements. These statements which give our current expectations or forecasts of future events, are based on current estimates, projections, beliefs, and assumptions of PolyMedica and its management, and are not guarantees of future performance. Actual results may differ materially from those described in the forward-looking statements. There are a number of important factors that could cause our actual results to differ materially from those indicated or suggested by such forward-looking statements. These factors include, without limitation, those set forth in the section titled Factors Affecting Future Operating Results in this Quarterly Report on Form 10-Q. Any forward-looking statements represent our estimates only as of the day this Quarterly Report was first filed with the SEC and should not be relied upon as representing our estimates as of any subsequent date. While we may elect to update forward-looking statements at some point in the future, we specifically disclaim any obligation to do so, even if our estimates change.
Business
PolyMedica is a leading provider of direct-to-consumer medical products, conducting business through its Liberty Diabetes, Liberty Respiratory and Pharmaceuticals segments. As a participating Medicare provider and third-party insurance biller, we provide a simple, reliable way for customers to obtain the needed direct-to-customer healthcare supplies and medications described below.
Liberty Diabetes
Through our Liberty Diabetes segment we provide direct-to-consumer diabetes testing supplies and related products primarily to Medicare-eligible customers suffering from diabetes. As of September 30, 2003, our Liberty Diabetes segment, which consists primarily of Liberty Medical Supply, Inc. (Liberty Medical), had approximately 584,000 active diabetes customers, as compared to approximately 500,000 as of September 30, 2002. We consider a person to be an active customer if that person has placed an order and we have shipped supplies to that person in the past twelve months. We meet the needs of our diabetes customers by:
- | providing mail order delivery of diabetes related supplies direct to our customers homes; | ||
- | billing Medicare and/or private insurance companies directly for those diabetes related supplies that are reimbursable; | ||
- | providing 24-hour telephone support to customers; and | ||
- | using sophisticated software and advanced order fulfillment systems to provide diabetes related products . |
In the United States, there are approximately seventeen million people with diabetes, including at least seven million seniors which comprise our primary market. While a portion of the seven million seniors with diabetes are covered by managed care or reside in extended care facilities, we believe that the balance are potential customers of ours. Many of our active diabetes customers also suffer from other chronic diseases, needs which we try and meet through products offered through our other segments.
Liberty Respiratory
Through our Liberty Respiratory segment we provide direct-to-consumer prescription respiratory medications and supplies primarily to Medicare-eligible customers suffering from chronic obstructive pulmonary disease (COPD). As of September 30, 2003, our Liberty Respiratory segment, which consists of Liberty Home Pharmacy Corporation (Liberty Home Pharmacy), had approximately 67,000 active customers for our COPD prescription medications and supplies, as compared to approximately 55,000 active customers as of September 30, 2002. We consider a person to be an active customer if that person has placed an order and we have shipped supplies to that person in the past twelve months.
-17-
Our Liberty Respiratory segment operates similarly to our Liberty Diabetes segment, as we deliver products to customers homes and bill Medicare and private insurance companies (if applicable) directly for those prescription respiratory medications and supplies that are reimbursable. In the United States, there are approximately sixteen million people with COPD, including approximately four million seniors. While a portion of the four million seniors with COPD are covered by managed care or reside in extended care facilities, we believe that the balance are potential customers of ours.
Pharmaceuticals
Through our Pharmaceuticals segment we provide direct-to-consumer prescription oral medications not covered by Medicare through Liberty Medical Supply Pharmacy (Liberty Pharmacy) and also function as a manufacturer and provider of prescription urology and suppository products, over-the-counter female urinary discomfort products and home medical diagnostic kits. We sell our over-the-counter female urinary discomfort products and home medical diagnostic kits under our AZO brand name to a network of large drug store chains, major supermarkets, mass merchandisers and drug wholesalers in the United States through PolyMedica Healthcare, Inc. Our line of prescription urology products, which includes urinary analgesics, antispasmodics, local anesthetics and analgesic suppositories, are sold to large drug wholesalers in the United States through PolyMedica Pharmaceuticals USA, Inc.
Business Strategies
Our principal strategy is to leverage our operating platform and compliance management protocol to expand our business. This strategy includes the following elements:
Continue growth in our direct to consumer businesses by expanding our customer base. Since the August 1996 acquisition of Liberty Medical, we have invested in an ongoing program of direct-response television advertising to reach a larger portion of the Medicare-eligible patient market. This campaign has resulted in a significant increase in sales as we have expanded our active Medicare-eligible diabetes customers from approximately 17,000 at the time of Liberty Medicals acquisition to approximately 584,000 customers as of September 30, 2003. In addition, we now have approximately 67,000 active customers for our prescription respiratory medications and supplies. We also use radio and print advertising and most recently, the purchase of outside customer lists, to further broaden our customer base. We continue to seek opportunities to deliver new products to a broader customer base by leveraging our mail-order distribution system and software for billing and customer monitoring. To manage our growth effectively, we are continually working to improve our operations, information systems, and regulatory compliance activities.
As a result of the expansion of our customer base, and emerging ability to leverage the value of our customer base by marketing a range of products to our customers, including those that are newly acquired, we are considering a number of new marketing initiatives. These initiatives may include the use of broad-based advertising that may not qualify as direct-response advertising and therefore, would be expensed as incurred. We are also considering expanding our customer base by purchasing businesses that provide products to consumers that are complementary to our existing products or the list of customers to whom such businesses provide products or services.
Continue growth in our non-Medicare initiatives. We continue to grow Liberty Pharmacy, a direct-to-consumer non-Medicare initiative that commenced operations in fiscal 2003. Liberty Pharmacy, part of our Pharmaceuticals segment, offers direct-to-consumer prescription oral medications not covered by Medicare. In the three and six months ended September 30, 2003, Liberty Pharmacy net revenues were $9.98 million and $18.31 million, respectively, as compared with $4.51 million and $7.58 million in the three and six months ended September 30, 2002, respectively. We expect the business to continue growing through the remainder of fiscal year 2004.
Continue adding complementary products and businesses. In order to take advantage of economies of scale in production and marketing, we continue to evaluate opportunities for the acquisition of businesses and products to complement our existing product lines and new business initiatives. In selecting and evaluating acquisition candidates, we examine the market potential for products that can be distributed through our existing marketing infrastructure and which utilize our strengths in sales, marketing and distribution. We also continue to consider adding businesses, manufacturing capabilities and new products that capitalize upon our established brand franchise.
-18-
Status of Chief Executive Officer Search
On August 4, 2002, Steven J. Lee, Chief Executive Officer, Chairman and a director of PolyMedica, retired as Chief Executive Officer, effective as of that date. Mr. Lee continued to serve as Chairman and a director through December 31, 2002. We continue to work with the executive recruitment firm of Heidrick & Struggles, which is assisting our Board in its search for a new chief executive officer.
Samuel L. Shanaman, our Lead Director, is performing the functions of the chief executive officer on an interim basis until a successor is named. Mr. Shanamans compensation for his services as Interim Chief Executive Officer, consists primarily of restricted stock and a nominal salary. For every day Mr. Shanaman works, he vests in a fixed number of shares of common stock under a restricted stock agreement. Currently, he vests in 102 shares of common stock for each workday. The fair value of the vested shares ($19.30 per share under his current agreement dated July 11, 2003) and the nominal salary he receives, are recorded as selling, general and administrative expenses in our consolidated statements of operations.
Mr. Shanaman became fully vested in the 16,690 restricted shares awarded under his first agreement entered into in October 2002, during the quarter ended March 31, 2003 and the 7,200 restricted shares awarded under his second agreement entered into in March 2003, during the quarter ended June 30, 2003. We then entered into a third agreement on July 11, 2003, which awarded an additional 10,000 restricted shares. During the quarter ended September 30, 2003, Mr. Shanaman became fully vested in 7,320 shares of the 10,000 awarded under the third agreement, with 2,680 to be earned going forward based upon his provision of services as Interim Chief Executive Officer.
Stock Split in the Form of 100% Common Stock Dividend
On September 5, 2003, our Board declared a two-for-one split of our common stock, payable on September 29, 2003 to all stockholders of record as of the close of business on September 19, 2003. The stock split was effected in the form of a 100% common stock dividend. All share and per share amounts in this Quarterly Report on Form 10-Q have been restated to reflect the retroactive effect of the stock split, except for our capitalization.
Other
Advertising rates may fluctuate during the year, which may affect our acquisition of new customers. We may purchase less advertising when rates are higher, which generally occurs in November and December. As a result, our acquisition of new customers during this period is generally reduced and our net revenues may fluctuate accordingly.
We operate from manufacturing and distribution facilities located in Massachusetts and Florida, respectively. Virtually all of our product sales are denominated in U.S. dollars.
Expense items include cost of sales and selling, general and administrative expenses, each as more fully described below:
| Cost of sales consists primarily of purchased finished goods for sale in our markets and, to a lesser extent, materials, direct labor, and overhead costs for products that we manufacture in our facility and shipping and handling fees. | ||
| Selling, general and administrative expenses consist primarily of expenditures for personnel and benefits, as well as legal and related expenses, allowances for bad debts, rent, amortization of capitalized direct-response advertising costs and other amortization and depreciation. |
Period-to-period comparisons of changes in net revenues are not necessarily indicative of results to be expected for any future period.
-19-
Critical Accounting Policies
Our discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these consolidated financial statements requires us to make significant estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. These items are regularly monitored and analyzed by management for changes in facts and circumstances, and material changes in these estimates could occur in the future. Changes in estimates are recorded in the period in which they become known. We base our estimates on historical experience and various other assumptions that we believe to be reasonable under the circumstances. Actual results may differ from our estimates if past experience or other assumptions do not turn out to be substantially accurate.
The following summaries of our critical accounting policies should be read in conjunction with our consolidated financial statements and the related notes included in this Quarterly Report on Form 10-Q. While all of our accounting policies impact the consolidated financial statements, certain policies may be viewed to be critical. Critical accounting policies are those that are both most important to the portrayal of our financial condition and results of operations and that require managements most subjective or complex judgments and estimates. Management believes the policies that fall within this category are the policies on revenue recognition and sales allowances, advertising, accounts receivable and the allowance for doubtful accounts, inventories, goodwill, accruals for Medicare adjustments, and uncertainties.
Revenue Recognition
We recognize revenue related to product sales to customers who have placed orders, upon shipment, provided that risk of loss has passed to the customer and we have received and verified the required written forms, if applicable, to bill Medicare, other third-party payers, and customers. We record revenue at the amounts expected to be collected from Medicare, other third-party payers, and directly from customers. As a result, our contractual allowances are immaterial. We analyze various factors in determining revenue recognition, including a review of specific transactions, current Medicare regulations and reimbursement rates, historical experience, and the credit-worthiness of customers. The determination of appropriate Medicare rates for billing and revenue recognition is complex and sometimes subjective and therefore may require managements interpretation. Sales allowances are recorded for estimated product returns as well as estimated claim denials, as a reduction of revenue. We analyze sales allowances using historical data adjusted for significant changes in volume, customer demographics, and business conditions. These allowances are adjusted to reflect actual returns and claim denials. Changes in these factors could affect the timing and amount of revenue and costs recognized.
Advertising
In accordance with Statement of Position 93-7(SOP 93-7) we capitalize and amortize direct-response advertising and related costs when we can demonstrate that customers have directly responded to our advertisements, among other things. We assess the realizability of the amounts of direct-response advertising costs reported as assets at each balance sheet date by comparing the carrying amounts of such assets to the probable remaining future net cash flows expected to result directly from such advertising. Managements judgments include determining the period over which such net cash flows are estimated to be realized, currently four years for our diabetes supplies and two years for our respiratory supplies. A business change, including a change in reimbursement rates, that reduces expected net cash flows or that shortens the period over which such net cash flows are estimated to be realized could result in accelerated charges against our earnings. For recent developments regarding the application of SOP 93-7, please see Note 5 to the consolidated financial statements.
Non-direct response advertising, promotional and marketing costs are charged to earnings in the period in which they are incurred.
Accounts Receivable and Allowance for Doubtful Accounts
The valuation of accounts receivable is based upon the credit-worthiness of customers and third-party payers as well as our historical collection experience. Allowances for doubtful accounts are recorded as a selling, general and administrative expense for estimated amounts expected to be uncollectible from third-party payers and customers. We base our estimates on our historical collection and write-off experience, current trends, credit policy, and on our analysis of accounts receivable by aging category. Changes in judgment regarding these factors could affect the timing and amount of costs recognized.
-20-
Our accounts receivable are generally due from Medicare, private insurance companies, Medicaid and our customers. The collection process is time consuming and complex and typically involves the submission of claims to multiple payers whose payment of claims may be contingent upon the payment of another payer. As a result, our collection efforts may be active up to 1 1/2 years from the initial billing date. In accordance with applicable regulatory requirements, we make reasonable and appropriate efforts to collect our accounts receivable, including deductible and copayment amounts, in a consistent manner for all payer classes.
Inventories
Inventories are carried at the lower of cost or market value. Market value or the net realizable value to PolyMedica is impacted by the types and levels of inventory held, forecasted demand, and pricing. Due to the medical nature of the products that we provide, customers sometimes request supplies before we have received the required written forms, if applicable, to bill Medicare, other third-party payers, and customers. As a result, included in inventories are items shipped to customers for which we have received an order but have not yet received the required written documents and therefore have not recognized revenue. The carrying value of inventory shipped to customers of $2.08 million and $2.57 million as of September 30 and March 31, 2003, respectively, is based upon historical experience of collection of documents required to bill Medicare, other third-party payers, and customers. Changes in judgment regarding the recoverability of inventories, including the carrying value of inventory shipped to customers, could result in the recording of additional income or expense.
Goodwill
Subsequent to the transitional impairment test, as prescribed under SFAS No. 142, we are required to perform impairment tests annually and whenever events or changes in circumstance suggest that the carrying value of an asset may not be recoverable. Step one of the impairment test is performed to determine whether an impairment exists, step two of the impairment test is performed to determine the amount of the charge to be recorded as a result of the impairment. See Note 4 to the consolidated financial statements. In performing impairment tests, we are required to make certain estimates and assumptions relating to the allocation of certain assets and liabilities to our reporting units, estimates of the fair values of our reporting units, and the related fair value of certain of their assets and liabilities. Changes in the estimates and assumptions used could affect the determination of whether an impairment exists as well as the quantification of the impairment value, should one exist.
Accruals for Medicare Adjustments
The governments Medicare regulations are complex and sometimes subjective and therefore may require managements interpretation. Accruals for Medicare adjustments occur in the normal course of business and are recorded when, based upon our assessment of the facts and circumstances, we believe that the amounts due are probable and estimable.
Uncertainties
Our compliance with Medicare regulations may be reviewed by federal or state agencies, including the Department of Health and Human Services Office of Inspector General (OIG), the Department of Justice (DOJ), and the United States Food and Drug Administration (FDA). The U.S. Attorneys Office for the Southern District of Florida, with the assistance of the Federal Bureau of Investigation (FBI) and OIG, is investigating allegations of healthcare fraud, improper revenue recognition and obstruction of justice by Liberty Medical and Liberty Home Pharmacy Corporation (Liberty Home Pharmacy). Both civil and criminal investigations are being conducted. We are cooperating with the investigations. Since July 1, 2001 we have spent approximately $10.58 million on outside legal and accounting fees primarily preparing for and responding to the investigations and the lawsuits described below. This work has been conducted under the overall direction of the Oversight Committee, a special Board committee comprised of three non-employee directors, which was established to oversee our response to the investigations and the related litigation.
We are party to the following additional legal proceedings:
- Class Action Lawsuit. We are a defendant in a purported class action lawsuit in the United States District Court for the District of Massachusetts against PolyMedica, Steven J. Lee, PolyMedicas former Chief Executive Officer and Chairman of the Board, Eric G. Walters, former Executive Vice President and Clerk of PolyMedica, and Warren K. Trowbridge,
-21-
President of Liberty Healthcare Group, Inc. and a Senior Vice President of PolyMedica, filed on behalf of purchasers of our common stock. The lawsuit seeks an unspecified amount of damages, attorneys fees and costs and claims violations of Sections 10(b), 10b-5, and 20(a) of the Securities Exchange Act of 1934 (the Exchange Act), alleging various statements were misleading with respect to our revenue and earnings based on an alleged scheme to produce fictitious sales. The complaint was originally filed November 27, 2000, and consolidated with a virtually identical later-filed complaint on July 30, 2001, under the caption In re: PolyMedica Corp. Securities Litigation, Civ. Action No. 00-12426-REK. A consolidated amended complaint was filed on October 9, 2001, asserting claims on behalf of a putative class of purchasers of PolyMedica stock between October 26, 1998 and August 21, 2001. The Court denied the defendants motion to dismiss the consolidated complaint on May 10, 2002. On July 30, 2001, the Court granted the plaintiffs motion to consolidate the complaints under the caption In re: PolyMedica Corp. Securities Litigation, Civ. Action No. 00-12426-REK. The case is currently in discovery. We believe that we have meritorious defenses to the claims made in the consolidated amended complaint and intend to contest the claims vigorously. We are unable to express an opinion as to the likely outcome of this litigation.
- Derivative Complaint. On August 9, 2001, a plaintiff filed a purported derivative action in Massachusetts Superior Court for Middlesex County against our Board. At least three virtually identical derivative actions were subsequently filed in Massachusetts Superior Court. On October 11, 2001, the Court granted plaintiffs motion to consolidate the derivative actions under the caption In re: PolyMedica Corp. Shareholder Derivative Litigation, Civ. Action No. 01-3446 and the plaintiffs subsequently filed a consolidated derivative complaint, alleging that the defendants breached their fiduciary duties by, among other things, failing to exercise reasonable care in the oversight of corporate affairs and management with respect to the operations of Liberty Medical and by acquiescing in alleged misconduct by Liberty Medical. The consolidated complaint, filed on December 17, 2001, names as defendants PolyMedica, Steven J. Lee, Arthur A. Siciliano, President of PolyMedica, Eric G. Walters, and five members of PolyMedicas Board of Directors: Herbert A. Denton, Thomas S. Soltys, Frank Logerfo, Marcia J. Hooper, and Daniel S. Bernstein. Defendants motion to dismiss the consolidated complaint was denied on July 16, 2002. On September 16, 2002, the Court granted defendants motions to report the case to the Appeals Court and stay the proceedings, but denied defendants motion to reconsider its denial of the motion to dismiss. On January 23, 2003, the Appeals Court docketed the case under the caption Roberta Casden v. Daniel S. Bernstein and others, No. 2003-P-0107. The case is currently stayed by the Appeals Court until November 4, 2003.
On July 1, 2003, the Appeals Court granted a motion to remand the proceedings to Middlesex Superior Court for purposes of approving a potential settlement. A settlement agreement has been filed with the Superior Court, and recites certain corporate governance changes we have made and enhancements to our compliance functions. Pursuant to this agreement, PolyMedica denied all liability and the factual allegations in the complaint and has agreed to pay only plaintiffs attorneys fees and expenses in an amount to be determined by the Court and notice costs. PolyMedica will seek and expects to receive reimbursement of such attorneys fees from its insurer. The settlement is subject to approval by the Middlesex Superior Court. We can provide no assurance that the settlement will be approved by the Court. The defendants believe they have meritorious defenses to the claims made in the consolidated complaint and if the settlement is not approved, intend to contest the claims vigorously.
- Litigation Relative to Direct Response Advertising. In July and August 2003, new lawsuits alleging violations of certain sections and rules of the Exchange Act were filed concerning PolyMedicas accounting treatment of advertising costs. In addition to PolyMedica, Steven J. Lee, Samuel L. Shanaman, Interim Chief Executive Officer and Lead Director, Arthur A. Siciliano, John K.P. Stone, III, General Counsel and Senior Vice President, Stephen C. Farrell, Senior Vice President and Chief Financial Officer, Eric Walters and Warren K. Trowbridge were named as defendants in these lawsuits. The first complaint, Sved v. PolyMedica Corp., Civ. Act. No. 03-11270-RCL was filed July 3, 2003. Similar complaints, Gourdji v. PolyMedica Corp., Civ. Act. No. 03-CV-11393, and Thompson v. PolyMedica Corp., Civ. Act. No. 03-CV-11604 were filed in U.S. District Court for the District of Massachusetts on July 24, 2003 and August 27, 2003, respectively.
Following our announcement on September 4, 2003 that we had concluded our discussions with the SEC concerning our capitalization of advertising costs under the direct-response advertising exception in SOP 93-7 and would not restate our historical financial statements, the parties filed, on September 23, 2003, a stipulated motion to dismiss, with prejudice, the Thompson complaint, and the Court granted the motion on September 25, 2003. On October 16, 2003, the parties filed a further motion and stipulation for order of dismissal without prejudice with respect to the remaining shareholder litigation pending in the U.S. District Court for the District of Massachusetts concerning PolyMedicas accounting treatment of advertising costs. The court granted the motion on October 23, 2003.
-22-
If any of these investigations or legal proceedings referred to above results in a determination that we have failed to comply with the statutes or regulations governing Medicare reimbursement or financial reporting or have otherwise committed healthcare fraud or securities law violations, we could be subject to delays or loss of reimbursement, substantial fines or penalties, and other sanctions (including exclusion from Medicare and other federal healthcare program participation). We cannot accurately predict the outcome of these proceedings at this time, and have therefore not recorded any charges relating to these proceedings. An unfavorable outcome could have a material effect on our financial position and results of operations.
In addition to those described above, we have certain contingent liabilities, including but not limited to, litigation that arises in the ordinary course of business. We accrue contingent liabilities when it is probable that future expenditures will be made and such expenditures can be reasonably estimated.
Compliance and Regulatory Affairs
Our Compliance and Regulatory Affairs Department works to prevent violations of applicable fraud and abuse laws and, if such violations occur, to promote early and accurate detection and prompt resolution. These objectives are achieved through education, monitoring, disciplinary action and other appropriate remedial measures. For instance, as a condition of employment, personnel are required to attend annual corporate compliance certification classes. In addition, each employee receives a compliance manual that has been developed to communicate standards of conduct and compliance policies and procedures. Our Compliance and Regulatory Affairs Department which was previously comprised of five groups, was recently expanded to seven groups:
| The Business Systems Group designs, develops and maintains databases for data tracking and analysis for each group in the Compliance and Regulatory Affairs Department. | ||
| The Monitoring Group performs oversight functions to ensure compliance with policies and procedures and applicable laws. These functions include telephonic monitoring of contacts between employees and customers, healthcare professionals, payers and other outside contacts. | ||
| The Investigations and Special Projects Group is a specialized group responsible for investigating and bringing closure to compliance issues brought forth from various avenues. This group is responsible for completing and/or providing support for a variety of projects deemed necessary, by corporate or senior management, to continue our commitment to healthcare compliance. | ||
| The Internal Reviews Group is responsible for conducting a variety of internal reviews of business operations to ensure compliance with healthcare program requirements and applicable laws. | ||
| The Contracts and Licensing Group is responsible for monitoring compliance with provider contracting and licensing requirements, which includes random, internal onsite inspections. As appropriate, we also use external audit resources to supplement our internal review and monitoring activities. | ||
| The External Communications Group is responsible for monitoring communications with third parties to ensure timely responses to requests for documents and other requests and oversees the receipt and timely dissemination of supplier bulletin information. | ||
| The Health Insurance Portability and Accountability Act (HIPAA) Group handles all questions, requests, correspondence, reports of abuse and any other issues arising out of the federal regulations regarding customers protected health information. |
Although each group is distinct and is assigned its own responsibilities, the Senior Vice President of Regulatory Affairs and Chief Compliance Officer coordinate activities within the department in order to promote the common goal of ensuring compliance with all federal, state and local laws and regulations applicable to our businesses. We continue to expand the size and capabilities of our Compliance and Regulatory Affairs Department.
-23-
Corporate Governance
In August 2001, our Board established an Oversight Committee, a special Board committee consisting of three non-employee directors, to monitor and oversee our response to the investigations and the related litigation described in Item 1 of Part II, Legal Proceedings of this Form 10-Q. The Oversight Committee is advised on legal matters by our outside legal counsel and other appropriate independent advisors. The Oversight Committee also monitors the activities of the Compliance and Regulatory Affairs Department and that departments compliance program to ensure compliance with Medicare and internal company policies.
Over the past two years, we have expanded and strengthened our Board through the addition of four new directors. We have also established the position of Lead Director, to be elected annually by our non-employee directors. Samuel Shanaman, Interim Chief Executive Officer, currently holds that position. The role of the Lead Director is to chair regular meetings of the non-employee directors, providing a strong focal point for both the Board and our shareholders.
Results of Operations
Three Months Ended September 30, 2003 Compared to Three Months Ended September 30, 2002
The following table presents consolidated statements of operations expressed as a percentage of net revenues:
Three months ended | ||||||||||
September 30, | September 30, | |||||||||
2003 | 2002 | |||||||||
Net revenues: |
||||||||||
Liberty Diabetes |
67.2 | % | 69.3 | % | ||||||
Liberty Respiratory |
19.1 | 21.1 | ||||||||
Pharmaceuticals |
13.7 | 9.6 | ||||||||
Total net revenues |
100.0 | 100.0 | ||||||||
Cost of sales |
36.4 | 35.5 | ||||||||
Gross margin |
63.6 | 64.5 | ||||||||
Selling, general and
administrative expenses |
45.2 | 46.6 | ||||||||
Income from operations |
18.4 | % | 17.9 | % | ||||||
Total net revenues increased 19.6% to $105.22 million in the three months ended September 30, 2003, as compared with $88.01 million in the three months ended September 30, 2002, primarily due to increased revenues generated from our Liberty Diabetes and Pharmaceuticals segments.
Net revenues from our Liberty Diabetes segment increased 16.1% to $70.76 million in the three months ended September 30, 2003, as compared with $60.96 million in the three months ended September 30, 2002. This increase was due primarily to the growth in our customer base, which grew 16.8% to approximately 584,000 active customers as of September 30, 2003, from approximately 500,000 as of September 30, 2002, primarily as a result of our advertising. Fluctuations in the order volume, order frequency and mix of product for new and existing customers, also contributed to the change in net revenues for the three months ended September 30, 2003, as compared with the three months ended September 30, 2002.
Net revenues from our Liberty Respiratory segment increased 7.8% to $20.07 million in the three months ended September 30, 2003, as compared with $18.61 million in the three months ended September 30, 2002. This increase was due primarily to the growth in our customer base, which grew 21.8% to approximately 67,000 as of September 30, 2003, from approximately 55,000 as of September 30, 2002, primarily as a result of our advertising. Net revenue growth in our Liberty Respiratory segment has slowed recently as a result of several factors, including a lower than expected response rate to our advertisements, increased competition and lower product utilization by our customers. We are addressing these issues by prospecting less deeply for new customers, expanding our efforts to acquire customers through internal
-24-
cross-referrals and other avenues and by introducing, on a trial basis, nebulizers that may be easier to use and allow shorter treatment times.
Net revenues from our Pharmaceuticals segment increased 70.5% to $14.39 million in the three months ended September 30, 2003, as compared with $8.44 million in the three months ended September 30, 2002, due primarily to the growth in our Liberty Pharmacy sales of prescription oral medications, not covered by Medicare. Sales of these products represented 69.4% and 53.4% of total Pharmaceuticals segment net revenues in the three months ended September 30, 2003 and 2002, respectively. We expect this trend of increasing sales from Liberty Pharmacy to continue through the remainder of fiscal 2004. The current customer base for these products consists primarily of existing Liberty Diabetes and Liberty Respiratory customers, and their spouses.
As a percentage of total net revenues, overall gross margins were 63.6% in the three months ended September 30, 2003, as compared with 64.5% in the three months ended September 30, 2002. Gross margins in the three months ended September 30, 2003 decreased primarily as a result of the increase in net revenues generated from lower-margin prescription oral medication sales. Liberty Pharmacy, although profitable, has significantly lower gross and operating margins than our other businesses.
As a percentage of total net revenues, selling, general and administrative expenses were 45.2% in the three months ended September 30, 2003, as compared with 46.6% in the three months ended September 30, 2002. Selling, general and administrative expenses increased by 16.1% in the three months ended September 30, 2003 to $47.58 million, as compared with $40.98 million in the three months ended September 30, 2002. The decrease in selling, general and administrative expenses as a percentage of net revenues was primarily attributable to realized economies of scale resulting from our growing business, together with reduced legal and related expenses and $1.30 million less of charges related to the termination of an executive officer, partially offset by a $2.22 million benefit for the reduction of accrued amounts due to Medicare and others recorded in the year-earlier quarter.
The provision for income taxes was $7.35 million and $5.97 million in the three months ended September 30, 2003 and 2002, respectively, which resulted in an effective tax rate of 37.8% in each of the three months ended September 30, 2003 and 2002. The effective tax rates in the three months ended September 30, 2003 and 2002 were higher than the Federal U.S. statutory rates due primarily to state taxes. Our effective tax rate may vary from period to period based on changes in estimated taxable income or loss, changes to federal or state tax laws, future expansion into areas with varying state or local income tax rates, and the deductibility of certain costs and expenses by jurisdiction.
-25-
Six Months Ended September 30, 2003 Compared to Six Months Ended September 30, 2002
The following table presents consolidated statements of operations expressed as a percentage of net revenues:
Six months ended | ||||||||||
September 30, | September 30, | |||||||||
2003 | 2002 | |||||||||
Net revenues: |
||||||||||
Liberty Diabetes |
67.7 | % | 70.4 | % | ||||||
Liberty Respiratory |
19.6 | 20.8 | ||||||||
Pharmaceuticals |
12.7 | 8.8 | ||||||||
Total net revenues |
100.0 | 100.0 | ||||||||
Cost of sales |
36.3 | 35.4 | ||||||||
Gross margin |
63.7 | 64.6 | ||||||||
Selling, general and
administrative expenses |
45.6 | 46.6 | ||||||||
Income from operations |
18.1 | % | 18.0 | % | ||||||
Total net revenues increased 20.4% to $204.16 million in the six months ended September 30, 2003, as compared with $169.61 million in the six months ended September 30, 2002. This increase was the result of the growth in sales in each of our Liberty Diabetes, Liberty Respiratory and Pharmaceuticals segments.
Net revenues from our Liberty Diabetes segment increased 15.7% to $138.29 million in the six months ended September 30, 2003, as compared with $119.48 million in the six months ended September 30, 2002. This increase was due primarily to the growth in our customer base, which grew 16.8% to approximately 584,000 active customers as of September 30, 2003, from approximately 500,000 as of September 30, 2002, primarily as a result of our advertising. Fluctuations in the order volume, order frequency and mix of product for new and existing customers, also contributed to the change in net revenues for the six months ended September 30, 2003, as compared with the six months ended September 30, 2002.
Net revenues from our Liberty Respiratory segment increased 13.5% to $39.94 million in the six months ended September 30, 2003, as compared with $35.19 million in the six months ended September 30, 2002. This increase was due primarily to the growth in our customer base, which grew 21.8% to approximately 67,000 as of September 30, 2003, from approximately 55,000 as of September 30, 2002, primarily as a result of our advertising. Net revenue growth in our Liberty Respiratory segment has slowed recently as a result of several factors, including a lower than expected response rate to our advertisements, increased competition and lower product utilization by our customers. We are addressing these issues by prospecting less deeply for new customers, expanding our efforts to acquire customers through internal cross-referrals and other avenues and by introducing, on a trial basis, nebulizers that may be easier to use and allow shorter treatment times.
Net revenues from our Pharmaceuticals segment increased 73.5% to $25.93 million in the six months ended September 30, 2003, as compared with $14.95 million in the six months ended September 30, 2002, due primarily to the growth in our Liberty Pharmacy sales of prescription oral medications, not covered by Medicare. Sales of these products represented 70.6% and 50.7% of total Pharmaceuticals segment net revenues in the six months ended September 30, 2003 and 2002, respectively. We expect this trend of increasing sales from Liberty Pharmacy to continue through the remainder of fiscal 2004. The current customer base for these products consists primarily of existing Liberty Diabetes and Liberty Respiratory customers, and their spouses.
As a percentage of total net revenues, overall gross margins were 63.7% in the six months ended September 30, 2003, as compared with 64.6% in the six months ended September 30, 2002. Gross margins in the six months ended September 30, 2003 decreased primarily as a result of the increase in net revenues generated from lower-margin prescription oral medication sales. Liberty Pharmacy, although profitable, has significantly lower gross and operating margins than our historical businesses.
-26-
As a percentage of total net revenues, selling, general and administrative expenses were 45.6% in the six months ended September 30, 2003, as compared with 46.6% in the six months ended September 30, 2002. Selling, general and administrative expenses increased by 17.8% in the six months ended September 30, 2003 to $93.07 million, as compared with $79.00 million in the six months ended September 30, 2002. The decrease in selling, general and administrative expenses as a percentage of net revenues was primarily attributable to realized economies of scale resulting from our growing business, together with reduced legal and related expenses and $1.24 million less of charges related to the termination of certain executive officers, partially offset by a $2.22 million benefit for the reduction of accrued amounts due to Medicare and others recorded in the year-earlier period.
The provision for income taxes was $14.10 million and $11.53 million in the six months ended September 30, 2003 and 2002, respectively, which resulted in an effective tax rate of 37.8% in each of the six months ended September 30, 2003 and 2002. The effective tax rates in the six months ended September 30, 2003 and 2002 were higher than the Federal U.S. statutory rates due primarily to state taxes. Our effective tax rate may vary from period to period based on changes in estimated taxable income or loss, changes to federal or state tax laws, future expansion into areas with varying state or local income tax rates, and the deductibility of certain costs and expenses by jurisdiction.
Liquidity and Capital Resources
Our business is currently funded primarily through cash flow from operations. Our cash and cash equivalents balance increased $8.42 million to $35.58 million as of September 30, 2003, as compared with $27.16 million as of March 31, 2003. Cash flows from operations of $23.96 million for the six months ended September 30, 2003, were generated by net income of $23.20 million and a decrease in net accounts receivable of $11.72 million, offset by cash used to fund certain areas of our operations, such as accounts payable which decreased $9.13 million in the six months ended September 30, 2003.
In the six months ended September 30, 2003 and 2002, we used $16.56 million and $12.08 million of cash for investing activities, respectively. The $4.48 million increase in total cash used for investing activities was primarily due to $5.94 million used to purchase short-term investments net of a decrease in capital expenditures of $1.67 million in the six months ended September 30, 2003, as compared with the six months ended September 30, 2002. Property, plant and equipment purchases totaled $10.41 million and $12.08 million for the six months ended September 30, 2003 and 2002, respectively. Higher spending in the prior year period for capital expenditures was related to the construction of a new 64,000 square foot respiratory supplies facility and a new 59,000 square foot distribution center, as compared with the renovation of an existing 120,000 square foot Port St. Lucie facility purchased in January 2003, in the current year six month period.
In the six months ended September 30, 2003, we generated $1.01 million of cash from financing activities, which consisted primarily of $9.07 million of proceeds raised from the issuance of PolyMedica common stock related to stock options exercised during the period by non-executive officers, offset primarily by $6.17 million of cash dividends paid to PolyMedica shareholders.
On August 15, 2003, we paid a $0.125 per share cash dividend on 24,785,074 common shares outstanding for a total payment of $3.10 million to our common shareholders of record as of the close of business on August 5, 2003. For the six months ended September 30, 2003, we paid a total of $6.17 million in cash dividends to our common shareholders of record. On October 6, 2003 our Board declared a cash dividend of $0.15 per share of PolyMedicas common stock to shareholders of record as of the close of business on November 5, 2003, payable on November 17, 2003. While a significant decline in our cash balances or another business change could cause us to reduce or eliminate the payment of dividends to shareholders, the current intention of our Board is to pay a cash dividend on a quarterly basis for the foreseeable future.
We are subject to government investigations and related litigation, which, if decided against us, could materially
-27-
affect our liquidity. Please see Item 1 of Part II, Legal Proceedings, for a more complete description of these matters. From time to time we conduct internal investigations to determinate compliance with complicated and subjective billing rules applicable to Medicare and third-party reimbursement. If we discover billing errors, we may have to refund amounts previously reimbursed by Medicare or paid by third parties.
We believe that our cash, cash equivalents and short-term investments balance as of September 30, 2003 of $42.96 million and cash flows generated from operations, will be sufficient to meet working capital, capital expenditure and financing needs. In the event that we undertake to make acquisitions of complementary businesses, products or technologies, we may require substantial additional funding beyond currently available working capital and funds generated from operations. Other factors which could negatively affect our liquidity include a reduction in the demand for our products, an unfavorable outcome of pending litigation and investigations, or a reduction in Medicare reimbursement for our products (see Uncertainties in Critical Accounting Policies). Please see Factors Affecting our Future Results for further factors that could materially and adversely affect our business.
Our contractual obligations for future annual minimum lease, rental and advertising commitments as of September 30, 2003, were not materially different from those as of March 31, 2003, disclosed in our Annual Report on Form 10-K for the fiscal year ended March 31, 2003.
Accounting Pronouncements
In May 2003, the FASB issued SFAS No. 150, Accounting For Certain Financial Instruments with Characteristics of Both Liabilities and Equity, which establishes standards for how an issuer of financial instruments classifies and measures certain financial instruments with characteristics of both liabilities and equity. It requires that an issuer classify a financial instrument that is within its scope as a liability (or an asset in some circumstances) if, at inception, the monetary value of the obligation is based solely or predominantly on a fixed monetary amount known at inception, variations in something other than the fair value of the issuers equity shares or variations inversely related to changes in the fair value of the issuers equity shares. SFAS No. 150 is effective for financial instruments entered into or modified after May 31, 2003, and otherwise is effective at the beginning of the first interim period beginning after June 15, 2003. We adopted SFAS No. 150, as required, on July 1, 2003. The adoption of this statement has not had a material impact on our financial position or results of operations.
In December 2002, the FASB issued FASB Interpretation No. 46, Consolidation of Variable Interest Entities (FIN 46). In general, a variable interest entity is a corporation, partnership, trust or other legal structure used for business purposes that either (a) does not have equity investors with characteristics of a controlling financial interest or (b) has equity investors that do not provide sufficient financial resources for the entity to support its activities. A variable interest entity often holds financial assets, including loans or receivables, real estate or other property. FIN 46 requires a variable interest entity to be consolidated by a company if that company is subject to a majority of the risk of loss from the variable interest entitys activities or entitled to receive a majority of the entitys residual returns or both. Additionally, companies with significant investments in variable interest entities, even if not required to consolidate the variable interest entity, have enhanced disclosure requirements. FIN 46 is effective immediately for certain disclosure requirements and variable interest entities created after January 31, 2003 and is effective for periods beginning after December 15, 2003 for variable interest entities created before February 1, 2003. The adoption of this statement is not expected to have a material impact on our financial position or results of operations.
Factors Affecting Future Operating Results
Our future operating results remain difficult to predict. We continue to face many risks and uncertainties which could affect our operating results, including without limitation, those described below.
We could experience significantly reduced profits if Medicare changes, delays or denies reimbursement
Sales of a significant portion of our Liberty Diabetes and Liberty Respiratory medications and supplies depend on the continued availability of reimbursement by government and private insurance plans. Any reduction in Medicare reimbursement currently available for our products would reduce our revenues. Without a corresponding reduction in the cost of such products, the result would be a reduction in our overall profit margin. Similarly, any increase in the cost of such products would reduce our overall profit margin unless there was a corresponding increase in Medicare reimbursement. Our profits could also be affected by the imposition of more
-28-
stringent regulatory requirements for Medicare reimbursement or adjustments to previously reimbursed amounts.
Federal governmental authorities are continually considering changes to laws and regulations applicable to us as they relate to billing requirements and reimbursement levels of our products. Legislation and regulations are pending relating to:
| Medicare reform proposals |
The United States House of Representatives (House) and Senate (Senate) are considering Medicare reform and coverage of outpatient prescription drug legislation that include proposals to freeze the rate of durable medical equipment (DME) payments through 2010, reduce payments for covered outpatient prescription drugs to 85%, from the current 95%, of the average wholesale price (AWP) of such drugs, require certain DME to be competitively bid, and implement a competitive acquisition program for outpatient drugs and biologics. If this legislation is enacted, it will likely include one or more of these changes. The Medicare conferees have tentatively determined that DME product payments will be frozen at their current rates. However, beginning in 2005, the Secretary of Health and Human Resources may select up to twelve products to be competitively bid. After that time, the Secretary may choose other products to be competitively bid, but the Secretary will have sole discretion for the selection of the DME products to be bid. In addition, the conferees are likely to require drug products that are currently administered by a physician, be paid on either the average sales price in a region or competitively bid.
If enacted, these proposals could apply to us. If competitive bidding for DME is enacted, we would begin the process of understanding which products will be subject to bidding, the bidding requirements and working with the appropriate officials in preparing bids for products that are covered. The other proposals could result in payment reductions for certain products. This legislation is also likely to authorize certain regulatory relief in the administrative process of the Medicare claims and payment rules. It is uncertain at this time whether such legislation will be enacted and become law.
| Inherent reasonableness |
Final regulations have been implemented by the Centers for Medicare and Medicaid Services (CMS) that develop a process for identifying whether a payment may be reduced or increased for a category of items or services if it is determined that such payment is grossly deficient or excessive. The process set forth in these regulations could affect the payment for the items that we provide.
Litigation may materially adversely affect us
PolyMedica and three individuals who are or were officers of PolyMedica are defendants in a lawsuit alleging violations of certain sections and rules of the Securities Exchange Act of 1934 (the Exchange Act), which was initiated in U.S. District Court for the District of Massachusetts in November 2000. In addition, there is a derivative action against certain directors and two individuals who are or were officers in Massachusetts state court alleging certain breaches of fiduciary duty. PolyMedica believes it has meritorious defenses to the claims made against it in the actions in which it is a defendant and intends to contest the claims vigorously. We cannot accurately predict the outcome of these proceedings at this time, and have therefore not recorded any charges relating to these proceedings. An unfavorable outcome could have a material effect on our financial position and results of operations. Please see Item 1 of Part II, Legal Proceedings, for a more complete description of these claims.
We could experience significantly reduced profits as the result of an unfavorable outcome to current governmental investigations
The regulations that govern Medicare reimbursement are complex and our compliance with those regulations may be reviewed by federal agencies, including the Department of Health and Human Services, the DOJ, and the FDA. Our interpretation of Medicare regulations may also differ from the interpretation of federal agencies. The U.S. Attorneys Office for the Southern District of Florida, with the assistance of the FBI and OIG, is investigating allegations of healthcare fraud, improper revenue recognition and obstruction of justice by Liberty Medical and Liberty Home
-29-
Pharmacy and we are conducting our own investigation. Both civil and criminal investigations are being conducted. We are cooperating with the investigations. We cannot accurately predict the outcome of these investigations and proceedings at this time, and have therefore not recorded any charges relating to these proceedings.
If any of these investigations results in a determination that we have failed to comply with the regulations governing Medicare reimbursement or financial reporting or have otherwise committed healthcare fraud or securities law violations, we could be subject to delays or loss of reimbursement, substantial fines or penalties, and other sanctions. An adverse determination could have a material effect on our financial position and results of operations. At this time, we cannot accurately predict the outcome of these proceedings, and have therefore not recorded any charges relating to these proceedings.
Shortening or eliminating amortization of our direct-response advertising costs could adversely affect our operating results
Any change in existing accounting rules or a business change that impacts expected net cash flows or that shortens the period over which such net cash flows are estimated to be realized, currently four years for our diabetes products and two years for our respiratory supplies, could result in accelerated charges against our earnings. For recent developments regarding the accounting treatment of our advertising costs, please see Note 5 to our consolidated financial statements. In addition, new or different marketing initiatives that may not qualify for direct-response advertising could result in accelerated charges against our earnings.
Geopolitical events may reduce our ability to obtain favorable advertising rates for our direct-response advertising efforts, which may adversely affect our operating results
The effectiveness of our direct-response advertising is subject to the risks arising from geopolitical events. For example, around the clock news coverage on the war in Iraq and the war on terrorism affected our ability to obtain favorable rates for our product advertisements and thus affected our ability to obtain new customers. Such geopolitical events may continue in the foreseeable future and may have a negative impact on our results of operations.
Our stock price could be volatile
The trading price of our common stock has been volatile and is likely to continue to be volatile. The stock market in general, and the market for healthcare-related companies in particular, has experienced extreme volatility. This volatility has often been unrelated to the operating performance of particular companies. Investors may not be able to sell their common stock at or above the price at which they purchased the stock. Prices for the common stock will be determined in the marketplace and may be influenced by many factors, including variations in our financial results, changes in earnings estimates by industry research analysts, investors perceptions of us and general economic, industry and market conditions.
We plan to continue our rapid expansion; if we do not manage our growth successfully, our growth and profitability may slow or stop
We have expanded our operations rapidly and plan to continue to expand. This expansion has created significant demand on our administrative, operational and financial personnel and other resources. Additional expansion in existing or new markets could strain these resources and increase our need for capital. Our personnel, systems, procedures, controls and existing space may not be adequate to support further expansion.
The profitability of our Liberty Diabetes and Liberty Respiratory segments will decrease if we do not receive recurring orders from customers
We generally incur losses and negative cash flow with respect to the first order from a new customer for Liberty Diabetes and Liberty Respiratory supplies, due primarily to the marketing and regulatory compliance costs associated with initial customer qualification. Accordingly, the profitability of these segments depends in large part on recurring and sustained reorders. Reorder rates are inherently uncertain due to several factors, many of which are outside our control, including changing customer preferences, competitive price pressures, customer transition to extended care facilities, customer mortality and general economic conditions.
-30-
We could experience significantly reduced profits from our Liberty Diabetes segment if improved technologies that eliminate the need for consumable testing supplies are developed for glucose monitoring
The majority of our Liberty Diabetes net revenues are from consumable testing supplies, used to draw and test small quantities of blood for the purpose of measuring and monitoring glucose levels. Numerous research efforts are underway to develop more convenient and less intrusive glucose measurement techniques. The commercialization and widespread acceptance of new technologies that eliminate or reduce the need for consumable testing supplies could negatively affect our Liberty Diabetes segment.
We could experience a charge to earnings as a result of an impairment of our goodwill
We are required to perform impairment tests under SFAS No. 142 annually and whenever events or changes in circumstance suggest that the carrying value of an asset may not be recoverable. The valuation of our goodwill is based upon the results of these impairment tests. Changes in assumptions used and forecasted results of operations of the reporting unit carrying goodwill, could affect the quantification of an impairment value, should one exist.
We could be liable for harm caused by products that we sell
The sale of medical products entails the risk that users will make product liability claims. A product liability claim could be expensive. While management believes that our insurance provides adequate coverage, no assurance can be made that adequate coverage will exist for these claims.
We could lose customers and revenues to new or existing competitors
Competition from other sellers of products offered through our Liberty Diabetes, Liberty Respiratory and Pharmaceuticals segments, manufacturers of healthcare products, pharmaceutical companies and other competitors is intense and expected to increase. Many of our competitors and potential competitors are large companies with well-known names and substantial resources. These companies may develop products and services that are more effective or less expensive than any that we are developing or selling. They may also promote and market these products more successfully than we promote and market our products.
Loss of use of manufacturing or data storage facilities would significantly reduce revenues and profits from our businesses
We manufacture substantially all of our prescription urology and suppository products and many of our AZO brand name products at our facility in Woburn, Massachusetts. In addition, we process and store most of our customer data in our facility in Port St. Lucie, Florida. If we cannot use any of these facilities as a result of the FDA, Occupational Safety and Health Administration or other regulatory action, fire, natural disaster or other event, our revenues and profits would decrease significantly. We might also incur significant expense in remedying the problem or securing alternative manufacturing or data storage sources.
If we or our suppliers do not comply with applicable government regulations, we may be prohibited from selling our products
The majority of the products that we sell are regulated by the FDA and other regulatory agencies. If any of these agencies mandate a suspension of production or sales of our products or mandate a recall, we may lose sales and incur expenses until we are in compliance with the regulations or change to another acceptable supplier.
We could have difficulty selling our pharmaceuticals products if we cannot maintain and expand our sales to distributors
We rely on third party distributors to market and sell our over-the-counter female urinary discomfort products and prescription urology and suppository products. Future sales of these products depend in part on our maintaining and expanding marketing and distribution relationships with pharmaceutical, medical device, personal care and other distributors and on the success of those distributors in marketing and selling our products.
-31-
Our quarterly revenues or operating results could vary, which may cause the market price of our securities to decline
We have experienced fluctuations in our quarterly operating results and anticipate that such fluctuations could continue. Results may vary significantly depending on a number of factors, including:
- | changes in reimbursement guidelines and amounts; | ||
- | changes in regulations affecting the healthcare industry; | ||
- | the timing of customer orders; | ||
- | the timing and cost of our advertising campaigns; | ||
- | the timing of the introduction or acceptance of new products offered by us or our competitors; and | ||
- | changes in the mix and costs of our products; product mix and costs are significantly influenced by the product brand chosen by the customers of our mail-order diabetes supply business. We provide a wide range of product brand choices to our customers, purchased at varying costs from suppliers. Our ability to sustain current gross margin levels is dependent both on our ability to continue securing favorable pricing from suppliers and on the brand choices of our customers. |
A reduction in working capital or another business change could prevent us from paying dividends to shareholders
A significant decline in our cash balances or another business change could cause us to reduce or eliminate the payment of dividends to shareholders.
We may make acquisitions that will strain our financial and operational resources
We regularly review potential acquisitions of businesses and products. Acquisitions involve a number of risks that might adversely affect our financial and operational resources, including:
- | diversion of the attention of senior management from important business matters; | ||
- | amortization of substantial intangible assets; | ||
- | difficulty in retaining key personnel of an acquired business; | ||
- | failure to assimilate operations of an acquired business; | ||
- | possible operating losses and expenses of an acquired business; | ||
- | exposure to legal claims for activities of an acquired business prior to acquisition; and | ||
- | incurrence of debt and related interest expense. |
We may issue preferred stock with rights senior to the common stock
Our articles of organization authorize the issuance of up to 2,000,000 shares of preferred stock without shareholder approval. The shares may have dividend, voting, liquidation and other rights and preferences that are senior to the rights of the common stock. The rights and preferences of any such class or series of preferred stock would be established by our Board in its sole discretion.
-32-
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We own certain money market funds, commercial bonds and mutual funds that are sensitive to market risks as part of our investment portfolio. The investment portfolio is used to preserve our capital until it is required to fund operations, investing or financing activities. None of the market-risk sensitive instruments held in our investment portfolio are held for trading purposes. We do, however, hold some market-risk sensitive instruments in our executive deferred compensation plans, for trading purposes. These investments are accounted for under SFAS No. 115, Accounting for certain investments in Debt and Equity Securities. The investments are recorded at fair value, and changes in fair value are recorded as compensation expense and investment income for the period. We do not own derivative financial instruments in our investment portfolio. We do not believe that the exposure to market risks in our investment portfolio is material.
-33-
Item 4. Controls and Procedures
(a) Evaluation of disclosure controls and procedures. PolyMedicas management, with the participation of PolyMedicas interim chief executive officer and chief financial officer, evaluated the effectiveness of PolyMedicas disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of September 30, 2003. Based on this evaluation, PolyMedicas interim chief executive officer and chief financial officer concluded that, as of September 30, 2003, PolyMedicas disclosure controls and procedures were (1) designed to ensure that material information relating to PolyMedica, including its consolidated subsidiaries, is made known to PolyMedicas interim chief executive officer and chief financial officer by others within those entities, particularly during the period in which this report was being prepared and (2) effective, in that they provide reasonable assurance that information required to be disclosed by PolyMedica in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms.
(b) Changes in internal controls. No change in PolyMedicas internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the fiscal quarter ended September 30, 2003 that has materially affected, or is reasonably likely to materially affect, PolyMedicas internal control over financial reporting.
-34-
PART II OTHER INFORMATION
Item 1. Legal Proceedings
Please refer to Item 3 of our Annual Report on Form 10-K for the fiscal year ended March 31, 2003 for a complete description of our legal proceedings. Any material developments regarding these legal proceedings for the quarter ended September 30, 2003 are set forth below.
U.S. Attorneys Office
No material developments.
Class Action Lawsuit
No material developments.
Derivative Complaint
For additional information on this matter, please refer to our Annual Report on Form 10-K for the fiscal year ended March 31, 2003 and our Quarterly Report on Form 10-Q for the three months ended June 30, 2003.
On June 26, 2003, the parties filed a motion to remand the proceeding to Middlesex Superior Court for the purpose of approving a potential settlement. On July 1, 2003, the Appeals Court issued a notice that the motion to remand to Superior Court had been granted. On August 4, 2003, the parties filed a stipulated motion for dismissal of the appeal without prejudice. On August 5, 2003, in response to the motion to dismiss, the Court issued a notice further staying the appellate proceeding until September 3, 2003. By order issued September 4, 2003, the Court extended the stay until November 4, 2003.
The settlement is subject to approval by the Middlesex Superior Court. The settlement agreement was originally filed with the Superior Court on July 11, 2003, and a revised agreement was filed on October 3, 2003. The settlement agreement recites certain corporate governance changes we made, such as the addition of three non-employee directors to our Board since September 2001, the appointment of a Lead Director, and enhancements to our compliance functions. Pursuant to this agreement, PolyMedica denied all liability and the factual allegations in the complaint and has agreed to pay only plaintiffs attorneys fees and expenses in an amount to be determined by the Court and notice costs. PolyMedica will seek and expect to receive reimbursement of such attorneys fees from its insurer. We can provide no assurance that the settlement will be approved by the Court. The defendants believe they have meritorious defenses to the claims made in the consolidated complaint and if the settlement is not approved, intend to contest the claims vigorously.
Direct-Response Advertising Shareholder Litigation
For additional information on this matter, please refer to our Annual Report on Form 10-K for the fiscal year ended March 31, 2003 and our Quarterly Report on Form 10-Q for the three months ended June 30, 2003.
On August 27, 2003, another virtually identical complaint, Thompson v. PolyMedica, Civ. Act. No. 03-CV-11604, was filed in the U.S. District Court for the District of Massachusetts. On September 2, 2003, the Sved and Gourdji plaintiffs moved to consolidate the cases, and for the appointment of lead plaintiff and lead counsel. This motion was granted on September 24, 2003. Further, following our announcement, on September 4, 2003, that we had concluded our discussions with the SEC concerning our capitalization of advertising costs under the direct-response advertising exception in SOP 93-7 and would not restate our historical financial statements, the parties filed, on September 23, 2003, a stipulated motion to dismiss, with prejudice, the Thompson action, and the court granted the motion on September 25, 2003. On October 16, 2003, the parties filed a further motion and stipulation for order of dismissal without prejudice with respect to the remaining shareholder litigation pending in the U.S. District Court for the District of Massachusetts concerning PolyMedicas accounting treatment of advertising costs. The court granted the motion on October 23, 2003.
-35-
Item 4. Submission of Matters to a Vote of Security Holders
At our Annual Meeting of Stockholders held on September 26, 2003, the following proposals were submitted to a vote of our stockholders:
1. To elect the following three (3) nominee directors as Class III Directors of PolyMedica for the ensuing three years:
Nominees for Election as Directors: | FOR | WITHHELD | ||||||
Daniel S. Bernstein, M.D. |
10,912,287 | 188,598 | ||||||
Herbert A. Denton |
11,070,008 | 30,877 | ||||||
Walter R. Maupay, Jr. |
10,808,078 | 292,807 |
2. To ratify the selection by the Board of PricewaterhouseCoopers LLP as PolyMedicas public accountants for the fiscal year ending March 31, 2004:
FOR | AGAINST | ABSTAIN | |||||||||||
10,789,406 | 303,824 | 7,655 |
Item 6. Exhibits and Reports on Form 8-K
(a) See Exhibit Index immediately following this report, which is incorporated herein by reference.
(b) Reports on Form 8-K:
On August 13, 2003, PolyMedica furnished a Current Report on Form 8-K under Item 12 (Results of Operations and Financial Condition) containing a copy of its earnings release for the period ended June 30, 2003.
-36-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
PolyMedica Corporation | ||
(registrant) | ||
/s/ Samuel L. Shanaman | ||
Samuel L. Shanaman | ||
Lead Director and Interim Chief Executive Officer | ||
(Principal Executive Officer) | ||
/s/ Stephen C. Farrell | ||
Stephen C. Farrell | ||
Senior Vice President and Chief Financial Officer | ||
(Principal Financial and Accounting Officer) |
Dated: November 3, 2003
-37-
Exhibit Index
Exhibit | Description | |||
10.1 | - - | Letter Agreement amendment to Employment Agreement by and between the Registrant and John K.P. Stone, III dated August 29, 2003. | ||
10.2 | - - | Letter Agreement amendment to Employment Agreement by and between the Registrant and Warren K. Trowbridge dated August 29, 2003. | ||
10.3 | - - | Letter Agreement amendment to Employment Agreement by and between the Registrant and Stephen C. Farrell dated August 29, 2003. | ||
31.1 | - - | Certification by Chief Executive Officer pursuant to Rule 13a14(a)/15d-14(a) of the Securities Exchange Act of 1934, as amended. | ||
31.2 | - - | Certification by Chief Financial Officer pursuant to Rule 13a14(a)/15d-14(a) of the Securities Exchange Act of 1934, as amended. | ||
32.1 | - - | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
-38-